Citation Nr: 21016088 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 12-04 604 DATE: March 19, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) for the appellate period prior to March 22, 2018 is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran was rendered unable to maintain gainful employment due to her service-connected posttraumatic stress disorder with major depressive disorder (hereinafter referred to as “PTSD”) for the appellate period prior to March 22, 2018. CONCLUSION OF LAW For the appellate period prior to March 22, 2018, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from January 1985 to January 1989. By way of procedural background, in a March 2010 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) granted service connection for PTSD and assigned a 50 percent rating, effective August 26, 2008. In August 2016, the Board of Veterans’ Appeals (Board) determined that the issue of entitlement to a TDIU had been raised by the record, added it to the appeal, and remanded the claims for further development. In a May 2018 rating decision, the RO assigned a 100 percent disability rating for PTSD, effective March 22, 2018, and denied entitlement to a TDIU. In a June 2018 Supplemental Statement of the Case (SSOC), the RO denied entitlement to an initial disability rating in excess of 50 percent for PTSD prior to March 22, 2018 and denied entitlement to a TDIU. In August 2018, the Board denied entitlement to an initial disability rating in excess of 50 percent for PTSD prior to March 22, 2018 and remanded the issue of entitlement to a TDIU prior to March 22, 2018 for further development and to refer the claim to the Director of Compensation Service (Director) for extraschedular TDIU consideration. In a May 2020 SSOC, the RO denied entitlement to a TDIU prior to March 22, 2018. In October 2020, the Board again remanded the issue of entitlement to a TDIU prior to March 22, 2018 for referral to the Director. In a December 2020 Memorandum, the Director denied entitlement to an extraschedular TDIU. The denial was continued in a December 2020 SSOC. The matter has now returned to the Board for further appellate consideration. The Board observes that in a March 2021 Appellate Brief, the Veteran, through her representative, argues that the issue of entitlement to an initial disability rating in excess of 50 percent for PTSD prior to March 22, 2018 is also before the Board “as an inferred claim.” However, based on the procedural history discussed above, that issue was previously adjudicated in the Board’s August 2018 decision. As such, the only issue pending before the Board is entitlement to a TDIU prior to March 22, 2018. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to a TDIU prior to March 22, 2018 In this matter, the Veteran does not meet the schedular criteria for a TDIU as her only service-connected disability is PTSD, rated as 50 percent disabling prior to March 22, 2018. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). It is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled and that veterans who fail to meet the schedular criteria for a TDIU rating shall be considered for such a rating on an extra-schedular basis. See 38 C.F.R. § 4.16(b). While the Board is precluded from awarding TDIU on an extraschedular basis in the first instance, it must ensure that the claim is referred to the Director for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Here, after referring the claim, the Director denied entitlement to a TDIU in a December 2020 Memorandum. The RO continued to deny the claim in a December 2020 SSOC. Thus, in accordance with 38 C.F.R. § 4.16(b), the issue may now be adjudicated by the Board. In doing so, the Board conducts de novo review and must consider the Director’s decision to be “in essence the de facto decision of the agency of original jurisdiction” and not evidence. Wages v. McDonald, 27 Vet. App. 233, 238 (2015). The fact that a veteran is unemployed or has difficulty finding employment does not alone warrant assignment of a TDIU, as a high rating itself establishes that her disability makes it difficult for her to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that she is incapable “of performing the physical and mental acts required” to be employed. Id. at 363. Thus, the central question is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran’s education, training, and special work experience, but not to her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To determine whether a TDIU is warranted, the Board must consider all evidence of record to determine the earliest date as of which, within the one year prior to the filing of an informal or formal claim for TDIU, an increase in disability is ascertainable. See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). After careful consideration of the record and resolution of all reasonable doubt in favor of the Veteran, the Board finds that the Veteran is unemployable by reason of her service-connected PTSD. Specifically, the Board finds that the Veteran would not have been able to maintain any type of employment that was relevant to her educational background and work experience. In this regard, the Board notes that in Ray v. Wilkie, the Court defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to have two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the veteran’s history, education, skill, and training, whether the veteran has the physical ability to perform the type of activities required by the occupation at issue, and whether the veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58 (2019). As to the economic component of a substantially gainful occupation, the Board finds that the Veteran has been unemployed since January 2008. See VA examination reports dated February 2010, August 2015, and March 2018; VA treatment records dated May 2008 to October 2017. Thus, the Board finds that the Veteran did not work in a gainful capacity at any point during the period on appeal. As to the non-economic component of a substantially gainful occupation, the Veteran’s work history was as an industrial hygienist, which required the use of machines, tools, or equipment, technical knowledge, and the ability to complete written reports. See undated Disability Report submitted as part of the Veteran’s claim for disability benefits from the Social Security Administration (SSA). The Veteran’s mental ability to perform these skills was severely impacted by her service-connected PTSD and its associated symptoms of depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty concentrating, and difficulty in establishing and maintaining effective work and social relationships. Notably, the February 2010 and August 2015 VA examiners found that the Veteran’s PTSD symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning, and in a December 2017 VA addendum, the provider, a clinical psychologist, determined that the Veteran’s PTSD symptoms had a severe impact and resulted in marked impairment in functioning, noting that few aspects of social, occupational, or other important areas of functioning were still intact. Additionally, at the end of her April 2011 Correspondence, which was a little over a page of typed text, the Veteran wrote, “I would add more, but I am having difficulty concentrating, and I am out of time. It has taken me 4 hours to write this much…” This tends to show that the Veteran’s mental ability to concentrate and complete written documents, as required by her former profession as an industrial hygienist, has been severely impacted. The Veteran has also described herself as a “hermit” and a “recluse” and reported that she cannot go outside because she feels too vulnerable. See December 2011 Correspondence; September 2011 VA psychiatry E & M consultation record; February 2012 VA psychology consultation record. The Board finds that this would negatively impact her ability to participate in substantially gainful employment. The Board acknowledges that in the February 2010 VA examination report, the Veteran stated that her unemployment was due to arthritis and that she did not contend that her unemployment was due to her mental disorder, and in a September 2011 VA psychiatry E & M consultation record, the Veteran reported she stopped working “for medical (non-psychiatric) reasons.” However, the record indicates that the Veteran’s PTSD symptoms worsened after she stopped working. See July 2008 VA psychiatry consultation record; October 2008 VA psychiatry initial evaluation note; September 2011 VA psychiatry E & M consultation record; February 2012 VA psychology consultation record. Moreover, the Board emphasizes that the evidence need only be in relative equipoise for the Veteran to prevail. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Based on the foregoing, the Board finds that a TDIU predicated on unemployability stemming from the Veteran’s service-connected PTSD is warranted for the appellate period prior to March 22, 2018. Finally, the Veteran, nor her representative, have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.